Opinion
02-10-2015
The PEOPLE of the State of New York, Respondent, v. Rafael RODRIGUEZ, Defendant–Appellant.
Scott Rosenberg, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Scott Rosenberg, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
SWEENY, J.P., RENWICK, MOSKOWITZ, FEINMAN, KAPNICK, JJ.
Opinion Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered on or about September 28, 2011, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The evidence established that defendant took the victim's property by reaching into her pocket, and the alternative scenario posited by defendant is speculative and unsupported by any evidence.
Defendant's belated mistrial motion did not preserve his claim regarding the court's failure to instruct the deliberating jurors pursuant to CPL 270.40 and 310.10 before releasing them for lunch. The record does not support defendant's assertion that he was prevented from raising the issue at a time when the error could have been avoided. We decline to review this unpreserved issue in the interest of justice. As an alternative holding, we find no basis for reversal (see CPL 470.05[1] ). The court properly exercised its discretion in denying defendant's mistrial motion, particularly because it had already given the jury instructions, throughout the trial, that adequately conveyed the necessary admonitions (see People v. Williams, 46 A.D.3d 585, 846 N.Y.S.2d 620 [2d Dept.2007], lv. denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ). Furthermore, defendant would not accept any remedy other than a mistrial.